First Bank Of Nigeria Plc V. Mr. Nurudeen Ajani Akanji (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Respondents were the plaintiffs in Suit No. HU/228/2000 at the Uyo Judicial Division of the High Court of Akwa Ibom State. They filed a motion exparte on 29/6/2000 for leave to issue their writ of summons for the following reliefs against the Appellant as defendant:

“1. A declaration that the plaintiffs are not indebted to the defendant as far as the mortgage transaction involving plaintiffs’ late father’s landed property situate at No. LT Okon Essien Lane, Uyo is concerned.

2. A declaration that the defendant having commenced suit No. C/100/84 against the plaintiffs’ late father, Eyo I. I. Akpan at Calabar High Court concerning the mortgage sum in which plaintiffs’ landed property situate at No. 17 Okon Essien Lane, Uyo was used as security for a loan and the plaintiffs’ late father having admitted the sum of N51, 580.86 in the suit as debt due and owed to the defendant and of which the plaintiffs paid the said judgment debt to the defendant who thereafter voluntarily withdrew the suit against plaintiffs after collecting the said judgment debt of N51, 580.86, cannot again lay claim to any other sum of money or the property used as security in the mortgage transaction nor can the defendant maintain any other suit against the plaintiff.
3. AN ORDER for the defendant to release to the plaintiffs the title documents of the property known and situate at No. 17 Okon Essien Lane, Uyo which was used as security for the mortgage transaction registered as No. 22 at page 22 in Volume 157 in the then Land Registry, Calabar.
4. N10, 000, 000.00 damages for the trespass and continued detention of the title documents of the property known and situate at No.17 Okon Essien Lane, Uyo, Akwa Ibom State.
5. An injunction restraining the defendant, its agent, privies and/or servants from entering, trespassing, selling, assigning or dealing in any other way inconsistent with the plaintiffs’ right of ownership of the property known and situate at No 17, Okon Essien Lane, Uyo, Akwa Ibom State.

Leave was granted and the writ was issued on 10th July, 2000 for service on the defendant at Calabar branch of the bank and while granting the leave, the lower court also granted the order of interim injunction sought by the plaintiffs and restrained the defendant from trespassing, selling, assigning, or dealing in any other manner inconsistent with their right of ownership of the property known as 17 Okon Essien Lane, Uyo, Akwa Ibom State “till the next adjourned date except it is renewed by the Court on sufficient reasons being shown .”

The plaintiffs did not take any further step in respect of the suit and when the case was called for hearing on 6/3/2002 and the plaintiffs were absent the Court struck out the Suit. The Plaintiffs filed a motion on notice on 16/9/2002 to set aside the order of 6/3/2002 and the motion was granted by the lower court on 15/7/2004.

The defendant (now called the Appellant) was aggrieved by the order of the lower court and appealed to this court by the Notice and Grounds of Appeal filed on 9/3/2005 after obtaining the leave of the lower court. The Notice and Grounds of Appeal contained 9 grounds from which three issues were formulated in the Appellant’s Brief of Argument settled by Apostle Sir, Abraham Okon and deemed to be properly filed on 14/12/2000. Chief G. A, Udousoro learned counsel for the Respondents settled the Respondents’ Brief of Argument filed on 13/7/2009 which was also deemed as properly filed.

Without in anyway making the same a formal or formalized objection in the appeal, the learned counsel for Respondent observed at page 2 of his Brief of Argument that the manner in which the issues in the Appellant’s Brief were formulated has rendered the issues quite inelegant as they contain unnecessary particulars that make them very unwieldy.

Upon a close study of the Appellant’s Brief it is clear that the observation of the Respondents learned counsel is well founded. First, the Appellant’s counsel formulated three issues from his nine grounds of appeal without relating each of the issues to the particular grounds from which they emanated or are distilled, a situation which the appellate courts have continuously discouraged because a party is not allowed to formulate any issue not related to the ground of appeal. See Amadi v. N. N. P. C. (2000) 10 NWLR (Pt.674) 76; Arch Bishop Jatau v. Alhaji Ahmed (2003) SCNJ 18 382. The issues 1 and 2 in the Appellant’s Brief are framed with answers almost as lengthy as the arguments before the real argument, The essence of formulating issues is to succinctly raise points that are critical and which affect the fate of the appeal so that their favourable resolution may lead to the success of the appeal. See Okoye v. Nigerian Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt. 199) 501.

The complaint here is not that the three issues were proliferated since they cover grounds of appeal that are more than the three issues. They are only inelegant. I believe the situation can be taken care of under the power of this court to reframe such issues so as to bring out the real issues in controversy so long as the issues remain within the decision of the lower court and within the grounds of appeal, See Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169; Agbareh v. Mimrah (2008) All FWLR (Pt. 409) 559, (2008) 2 NWLR (Pt.1071) 378; Lebile v. The Registered Trustees of Cherubim and Cherubim Church of Zion of Nigeria Ugbonla 2003 1 SCNJ 463. When the questions, answers and the irrelevant portions in issues 1 and 2 are excised, the two issues come out in the following manner:

1. Could the proceedings and the accompanying Ruling of 15/7/2004 be said to be competent when the motion on Notice filed by the Plaintiffs on 16/9/2002 was never argued or ruled upon in line with the conditions precedent to relistment of cases struck out?.
2. Was it equitable for the lower court to relist Suit No.HU/228/2000 and to rescind its earlier order of 6/3/2000 when the Plaintiffs/Applicants motion on Notice was never argued and ruled upon in favour of Applicants?.

The third issue raised no argument in respect of the appeal, it is formulated thus:

“ISSUE NO. 3

In the circumstances where the motion to relist Suit No. HU/228/2000 carne up for argument on 15/7/2004 but to which motion to relist the plaintiffs/ Applicants had not exhibited the Court Order that struck out suit No.HU/228/2000 on 6/3/2000 can it be said that the Applicant’s said motion to relist was competent?

Answer:

The motion was to that extent defective very defective to make it liable to be struck out.”